Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Konstantinovich Lopata,
is a national of Kazakhstan who was born in 1963 and who lived until
his arrest in the village of Akhun (also referred to as Akhunovo) in
the Bashkortostan Republic of the Russian Federation. The applicant
is now serving the sentence in Ufa. He is represented before the Court
by Ms D. Vedernikova, a lawyer with the European Human Rights Advocacy
Centre (EHRAC) in Moscow. The respondent Government are represented
by Mr P. Laptev, Representative of the Russian Federation at the European
Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

1. The applicant's arrest and pre-trial
detention

(a) The applicant's 14-day detention in August
2000

On 3 August 2000 the applicant was arrested,
along with several other village residents, and placed in the temporary
confinement ward of the Uchaly police station (ИВС Учалинского ГРОВД). He was allegedly
beaten and pressed to confess to the murder of a certain Mr D. in the
village of Akhunovo. The applicant stayed in detention for fourteen
days; the legal basis for his detention remains unclear, yet the applicant
appears not to have challenged the lawfulness of his detention before
the domestic authorities.

(b) The applicant's arrest in September 2000

On 5 September 2000 the applicant was apprehended
again and taken to the Uchaly police station. On the same day he was
questioned by Mr Alibakov, investigator of the Uchaly prosecutor's office,
Mr Gabdrakhmanov, senior operational officer, Mr Mustafin, deputy head
of the Uchaly police station, and Mr Mukhamadeyev, head of the criminal
police. According to the applicant, throughout the questioning they
put pressure on him to confess to D.'s murder.

The Government submit that on 5 September 2000
the investigator Alibakov formally explained the rights of an accused
to the applicant, including the right to free legal assistance, and
assigned a certain Mr Ur. to represent him. However, a copy of the report
“on announcement of the defence rights to an accused/defendant”
of 5 September 2000, produced by the Government, is not countersigned
by the applicant or by Ur. and it only bears a signature of the investigator
Alibakov.

On 6 September 2000 the applicant retained defence
counsel, Ms Akhunova, to represent him. On that and the following days
she visited him in the detention facility.

On 8 September 2000 Mr Alibakov, who was in charge
of the investigation into D.'s murder, authorised the applicant's detention
on remand. The applicant was accused of murdering D., a friend of the
applicant's daughter, in the night of 29-30 July 2000. The applicant
did not appeal against the detention order to a court.

(c) Alleged ill-treatment of the applicant
on 8-9 September 2000

The following account of events is based on a
typed statement (undated and signed by the applicant) enclosed with
a supervisory-review application to the Supreme Court of the Russian
Federation lodged in April 2001.

On Friday, 8 September 2000, at about 3 p.m.
the applicant was brought to an office in the Uchaly police station
where Gabdrakhmanov and Mustafin were already present. The investigator
Alibakov was not there. Gabdrakhmanov and Mustafin pressured the applicant
to write voluntarily a “confession statement” (явка с повинной) and promised in exchange to ask
Alibakov to reclassify the applicant's offence as involuntary manslaughter
in a fit of passion. The applicant did not admit his guilt and refused
to make any statements to that effect.

Mustafin and Gabdrakhmanov started beating the
applicant. They hit his head against the wall, twisted his arms, punched
his neck and kicked him in the groin. The beatings alternated with admonitions
to confess his guilt. Three times the applicant was placed with his
hands against the wall, legs wide apart, and Gabdrakhmanov hit his ankles
so that the applicant's legs slid apart and the applicant fell. Then
the applicant was brought back to his cell for a respite.

At about 9 p.m. Mr Khafizov, deputy head of the
criminal police, took the applicant out of the cell onto the second
floor of the ward to the office of Mukhamadeyev. Mustafin and Gabdrakhmanov
were in the room and Khafizov stayed outside. The applicant was shown
a confession statement written by someone else and was ordered to confess,
too. After he refused, police officers switched on the television and
started punching him in the face and kicking his ankles. This lasted
for approximately twenty minutes, then Gabdrakhmanov, using the remote
control unit, set the television to switch on in one hour; this signalled
an hour-long pause in the beatings. The applicant was handcuffed and
brought back to the cell by Khafizov who had waited outside.

An hour later the applicant was taken again to
the office. This time Mukhamadeyev joined Gabdrakhmanov and Mustafin,
while Khafizov stayed outside. The applicant refused to write a confession
statement. Mukhamadeyev turned the applicant to face the wall, took
a truncheon out of a cupboard, pulled the applicant's trousers down
and threatened to rape the applicant with the truncheon. Once the applicant
lowered his arms to pull his trousers up, he received a series of truncheon
blows to his head, back and legs. He fell and broke his lip against
the cupboard. After a series of punches and kicks the officers set the
timer for one hour and Mukhamadeyev placed the applicant in the cell,
having hit his head against the cell door.

When the applicant was brought back again, the
officers were drinking beer and offered the applicant to join. The applicant
had a drink and then he was sent back to the cell to “think about
[his] confession”.

Later on, the applicant was taken several times
out of the cell and brought to different offices where Mukhamadeyev,
Mustafin, Gabdrakhmanov and Khafizov, taking turns, tortured him in
various ways. The applicant's handcuffed hands were twisted so that
he strangled himself, he received strong blows to his left ear and fainted.

At about 5 a.m. on 9 September 2000, Saturday,
police officers escorted the applicant to the investigator's office
in the ward and told him to write down what he had been doing on 29
July 2000. It appears that the applicant did something wrong and the
officers stuffed the “spoiled” sheet of paper in his mouth and twisted
his limbs in all directions.

Finally, the applicant yielded and wrote a confession
statement along the lines described to him by Alibakov during the first
interrogation on 5 September. The officers read the statement and continued
to beat him up to get a more detailed account. The applicant wrote that
on 30 July 2000 at about 1.30 a.m. he had gone out to look for his daughter
and discovered her having sex with a man; he had taken a log and hit
the man in the head; he had not been able to hide the body immediately
because his scooter had been out of order.

At about 6.30 a.m. the applicant was escorted
to the cell.

(d) Events of 9-11 September 2000

On the same day (9 September 2000) at 11 a.m.
Mustafin and Gabdrakhmanov woke the applicant up and told him that he
would be transported to a detention facility in Ufa. He objected to
the trip; his right ear was blocked and his left ear oozed blood and
matter.

At about 4 p.m. investigator Alibakov called
the applicant and asked him whether he was ready to testify. The applicant
refused to speak without his counsel, Mrs Akhunova. Alibakov invited
the same lawyer who had been present at the interview on 5 September
2000. The lawyer talked to the applicant while Alibakov left the room,
and then confirmed to Alibakov that the applicant was entitled to claim
the presence of his private lawyer. The questioning did not take place.

On Sunday, 10 September 2000 the applicant stayed
in the cell.

On 11 September 2000 Mukhamadeyev, Gabdrakhmanov
and the director of the temporary confinement ward took the applicant
in a private car to detention facility SI-1/2 of Beloretsk (СИ-1/2 г. Белорецка). At the Court's request, the
Government produced the applicant's medical record from that facility.
The record indicates that upon his admission to the facility on 11 September
2000 the applicant was examined by a doctor. The doctor noted a complaint
about pain in his left ear and diagnosed it as “sinister chronic otitis
recrudescence” (обострение хронического отита слева).
He also observed that the applicant's skin was clear.

The applicant was placed in cell 13, then transferred
to cell 43 and later to cell 30.

(e) Restrictions on the applicant's communication
with his lawyer

According to the applicant's counsel, on 8 September
2000 she obtained permission from the head of the Uchaly police station
to visit the applicant. But after Mustafin had telephoned the police,
access was refused.

On the same day she complained about that situation
to the Uchaly district prosecutor's office. On 25 September 2000 a deputy
Uchaly district prosecutor responded to her that no irregularities could
be observed: Mustafin denied that he had refused her access to the applicant
on 8 September and, according to officers on duty in the ward, she had
collected a standard permission form and never returned it duly authorised
by the investigator in charge (that is, Alibakov).

(f) Complaints about alleged ill-treatment
on 8-9 September 2000

On 13 September 2000 the applicant, questioned
by Alibakov in the presence of counsel, stated that he had not murdered
D. and that the confession had been obtained from him by the officer
Mustafin, a “police major” and another “chubby police officer”.

On 14 September 2000 the applicant's lawyer lodged
a complaint with the Uchaly district prosecutor's office. She requested
that a criminal case for torture be opened against Mukhamadeyev, Mustafin
and two other unidentified police officers. She indicated that on seeing
the applicant on 12 September she had observed the following injuries:

“Physical injuries: abrasions between the right
eye and ear and below the lower lip on the right side; a fluid mixed
with blood flowing from the left ear; a contusion measuring 15-17 cm
by 8-10 cm in the area of the solar plexus; bruising and swelling to
the left foot; a bloody abrasion on the right knee; marks from handcuffs;
a bruise underneath the right eye and a damaged lip, split on the inside.”

It appears that a medical examination of the
applicant's body was commissioned. At the Court's request, the Government
produced a copy of expert report no. 1060 prepared by the medical expert
G. on the basis of a written decision of the senior investigator Alibakov.
According to the report, the examination began on 14 September and ended
on 18 September 2000. The expert noted the applicant's complaint about
pain in his left ear, but he did not find any bodily injuries on him.

On 17 September 2000 the applicant's lawyer lodged
a complaint about ill-treatment of her client with the Uchaly District
Court. The contents of the complaint were identical to that of 14 September.
She also added that the medical examination was not possible because
the expert was on holidays and she feared for the applicant's life and
health because he remained under the influence of Uchaly police officers.
These officers had allegedly visited the applicant in Beloretsk and
threatened him with “grave complications” if he “misbehaved”.
The lawyer requested the court to release the applicant on bail.

On 21 September 2000 the applicant's lawyer complained
to the Uchaly prosecutor's office about non-provision of medical assistance
to the applicant who suffered from pain in his left ear. On the following
day the prosecutor ordered the head of the temporary confinement ward
in Uchaly to take the applicant to an ear specialist.

On 24 September 2000 a deputy Uchaly district
prosecutor refused the applicant's lawyer's request to initiate criminal
proceedings against police officers who had allegedly beaten the applicant.
The deputy prosecutor solicited explanations from the officers Mukhamadeyev,
Mustafin, Khafizov and Gabdrakhmanov who denied having pressured or
ill-treated the applicant. The deputy prosecutor also referred to the
medical report of 14-18 September 2000 which had not disclosed any injuries
on the applicant's body. On the basis of these materials the deputy
prosecutor concluded that the applicant's allegations of ill-treatment
“raise[d] great doubts as to their credibility”. The decision indicated
that it could be appealed against to a higher prosecutor or a district
court. It appears from the forwarding note addressed to the applicant's
counsel that the decision of 24 September 2000 was served on her on
4 October 2000.

On 27 September 2000 the applicant's lawyer obtained
a medical certificate confirming that the applicant had been diagnosed
with ear inflammation. On the same day she complained to a prosecutor
that the applicant did not receive the prescribed ear treatment.

On an unspecified date the applicant's lawyer
lodged another complaint with the prosecutor of the Bashkortostan Republic.
She complained about the ill-treatment of the applicant and continuing
threats to him by officers Gabdrakhmanov and Mukhamadeyev.

On 3 October 2000 the applicant's lawyer sent
a letter to Mr Turumtayev, the prosecutor of the Bashkortostan Republic,
claiming that the medical expert who failed to discover any physical
injuries on the applicant's body during the examination on 14-18 September
2000, had committed an offence by public official, because “apart
from the obvious physical injuries he has sustained, [the applicant]
has damaged kidneys and his bladder is not working properly”.

On 4 October 2000 a deputy Uchaly district prosecutor
informed the applicant's counsel that he had visited the applicant on
30 September and 1 October 2000 in order to verify the conditions of
his detention. The conditions were found to be satisfactory and the
applicant confirmed in writing that no pressure had been applied to
him.

It appears that in November 2000 at the latest,
the investigator Alibakov was dismissed from the prosecutor's office
and the applicant's case was transferred to investigator L.

2. Trial and subsequent appeals

The prosecution's case was that in the night
of 29-30 July 2000 the applicant had seen his daughter having sex with
Mr D., he had become angry and hit D. on the head with a log, causing
him a fatal injury.

At the trial the applicant pleaded not guilty.
He denied having committed D.'s murder and claimed that his confession
statement had been given under pressure by police officers.

The applicant's underage daughter also revoked
her statements given on 5 September 2000 in the presence of M., child
protection inspector of the Uchaly education department. On that day
she had testified that her father had discovered her having sex with
D. and chased her home and that on the following day her father had
been nervous and mentioned to her mother that “apparently the corpse
had been discovered”. However, M. and I., teacher of the applicant's
daughter, testified before the court that she had given her testimony
voluntarily, without any pressure by the investigator. The court also
ordered an expert examination of the applicant's daughter handwritten
notes “My statements are correctly recorded and I have read them”
on the interrogation transcript. The expert confirmed that the handwriting
was that of the applicant's daughter.

The court then heard nine other witnesses, one
of whom had discovered D.'s corpse and another had seen D. and the applicant's
daughter kissing, and examined certain forensic evidence.

The court interviewed the police officers Mukhamadeyev,
Mustafin and Gabdrakhmanov who denied having used any “unlawful methods”
on the applicant and confirmed that he had written his confession statement
of his own will. The former investigator Alibakov confirmed that the
applicant's daughter had testified voluntarily. The court rejected the
applicant's lawyer allegations of ill-treatment by reference to, in
particular, medical report no. 1060 of 14-18 September 2000 where no injuries
were recorded.

On 15 January 2001 the Uchalinskiy District Court
found the applicant guilty as charged and sentenced him to nine years'
imprisonment in a high-security correctional colony.

The applicant and his lawyer appealed against
the conviction. Their grounds of appeal indicated, in particular, that
the applicant's confession statement was inadmissible as it had been
obtained under duress and in breach of procedural rules. The statements
of the applicant's underage daughter were also inadmissible because
she had been questioned in the absence of a teacher, which is required
by the Code of Criminal Procedure.

On 15 March 2001 the Supreme Court of the Bashkortostan
Republic upheld the applicant's conviction. It confirmed the conclusions
of the first instance court and held that no evidence of ill-treatment
had been discovered.

On 21 and 24 April 2001 R. and Z., the applicant's
cellmates in cell 13 of the Beloretsk facility SI-1/2, drafted hand-written
depositions. They indicated that on 11 September 2000 the applicant
had been locked into their cell and at that time he had had bruises
all over his body, a split lip and a swollen left ear oozing blood.
These depositions were enclosed with the applicant's lawyer's subsequent
applications for supervisory review. An account of ill-treatment printed
on five densely filled pages, that described details of the events of
8-9 September 2000, such as the layout of furniture in the offices of
the Uchaly police station where the applicant had been beaten up, was
also annexed.

On 7 May and 4 June 2001 the Presidium of the
Supreme Court of the Bashkortostan Republic and the Supreme Court of
the Russian Federation, respectively, examined the applicant's lawyer's
applications for supervisory review and dismissed them as advancing
no new arguments.

3. Alleged intimidation of the applicant

On 15 October 2003 the Court communicated the
application to the respondent Government.

On 18 January 2004 the Court received a faxed
letter from the applicant's brother (who had initially represented the
applicant before the Court) in which he indicated that the applicant
had been intimidated and forced to withdraw his application. In a letter
of 21 January 2004 the applicant's brother provided further details.
His description ran as follows:

“...I have to inform you about a conversation
between [my brother] and a Captain of the Department who did not show
his documents and did not identify himself. That happened on 6 January
2004. The Captain first asked [my brother] and then ordered [him] to
describe in writing the events of 2000. He said: 'You must write it
in the way I want you to. [My brother] answered: 'I won't write or sign
anything without a lawyer. Captain: 'I don't care about you or your
lawyer; it will be as I say. You are pawns. I will arrange it so that
you die here in two weeks but you will give me the statement I want.

We are very concerned about one issue. Why the
representatives [before the European Court] did not come from Moscow
themselves, and a Captain showed up and asked [him] to write [an explanation]?”

On 13 February 2004 the Court requested comments
from the respondent Government.

On 5 April 2004 the Government informed the Court
that on 6 January 2004 Captain Galin, an employee of the Main Directorate
of Execution of Punishments in the Bashkortostan Republic, had had a
“conversation” with the applicant “in order to clarify the circumstances
that had given rise to his application to the European Court”.

B. Relevant domestic law

Article 51 of the Russian Constitution provides
that no one may be required to incriminate himself or herself and his
or her spouse and close relatives. Article 21 § 2 of the Russian Constitution
prohibits torture.

The RSFSR Code of Criminal Procedure (in force until 1 July 2002)
established that a criminal investigation could be initiated by an investigator
upon the complaint of an individual or on the investigative authorities'
own motion (Articles 108 and 125). A prosecutor was responsible for
general supervision of the investigation (Articles 210 and 211). He
could order a specific investigative action, transfer the case from
one investigator to another or require the proceedings to be re-opened.
If there were no grounds to initiate a criminal investigation, the prosecutor
or investigator issued a reasoned decision to that effect which had
to be notified to the interested party. The decision was amenable to
an appeal to a higher prosecutor or to a court of general jurisdiction
(Article 113).

Article 111 of the Code of Criminal Procedure
(“Confession statement”) required that a confession statement be
recorded in detail in a separate document, signed by the person who
gave the confession and by the investigator or prosecutor who took the
confession.

Section 16 of the federal law “on holding of
criminal suspects and accused persons in custody” (no. 103-FZ of 15
July 1995) provides that placement in custody and in-take of suspects
must be regulated by the internal order regulations. The regulations
for detention facilities, approved by the Ministry of Justice of the
Russian Federation on 12 May 2000 (no. 148), provide, in particular,
that on the day of the placement a medical report is to be drawn up
about the person in custody. If the medical examination reveals any
bodily injuries, an appropriate act is to be signed by the assistant-on-duty,
a medical specialist, and the head of the guards who brought the person
in. The information on bodily injuries shall be operatively reviewed
and, if there are indications of a criminal offence, the materials are
to be sent to a regional prosecutor.

COMPLAINTS

1. The applicant complains under Article 3 of
the Convention about his ill-treatment by the police officers on 8-9
September 2000.

2. The applicant complains under Article 5 of
the Convention about his unlawful detention in September 2000.

3. The applicant complains under Article 6 §
3 (c) of the Convention that he was held without access to his lawyer
between 8 and 12 September 2000. He also complains that he and his lawyer
only were allowed to study a copy of the case-file which allegedly did
not match the original documents sent to the court.

4. The applicant complains under Article 6 §§
1 and 2 and Article 7 of the Convention that his conviction was based,
to a significant extent, on the self-incriminating statement obtained
from him by torture. He submits that the courts failed to establish
when, where and how D. had been murdered and that they disregarded the
expert reports which concluded, in particular, that D. could not have
been murdered with a log as stated in the applicant's confession statement.

THE LAW

1. The applicant complained that his treatment
by police officers on 8-9 September 2000 was incompatible with Article
3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”

A. The parties' submissions

The Government submit that they have no objection
to the presentation of the factual circumstances of the case, subject
to certain clarifications. They claim that the applicant's allegations
that the police officers forced him to confess are unsubstantiated.
Firstly, the confession statement contains the applicant's hand-written
note that he had given the confession without any pressure on the part
of the police. Secondly, according to the expert report of 18 September
2000, no injuries on the applicant's body were recorded. Furthermore,
at the time of the applicant's admission to facility no. SI-2 of Beloretsk
on 11 September 2000, he was examined by a doctor who noted “recrudescence
of chronic otitis” but did not record any abrasions. Finally, the
medical certificate of 27 September 2000 does not indicate the traumatic
genesis of the applicant's ear disease. In any event, the applicant
and his lawyer never appealed to a court against the prosecutor's decision
of 24 September 2000 refusing to initiate a criminal investigation into
their allegations. The Government invite the Court to reject the applicant's
complaint as manifestly ill-founded and also for his failure to exhaust
the domestic remedies.

The applicant submits that he has exhausted domestic
remedies because his lawyer filed complaints regarding the ill-treatment
on 14 September 2000 with the Uchaly prosecutor's office and on 17 September
2000 with the Uchaly district court. Furthermore, the allegations of
his ill-treatment was examined by the trial and appeal courts within
the framework of the criminal proceedings against him.

The applicant claims that the ill-treatment to
which he was subjected on 8-9 September 2000 by police officers, was
designed to cause both physical injury and mental suffering, in violation
of Article 3. He points out that the Government have raised no objection
to the summary of facts prepared by the Court's Registry on the basis
of his original submissions and that they merely asserted that his allegations
were unsubstantiated and were not corroborated by medical reports. The
applicant maintains that since he had come to Bashkortostan in 1997
and before the interrogation in September 2000 he had no health-related
complaints which is confirmed by a certificate from the local hospital.
To date, as a consequence of the beatings on 8-9 September 2000, he
suffers from pain in the area of kidneys, collar bone, and deafness
of the left ear. As he was taken into police custody in good health,
it has been the Court's traditional approach to require the State to
provide a plausible explanation of how the injuries were caused, failing
which a clear issue arises under Article 3 (Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
The applicant further submits that the medical documents drawn up after
he had been tortured, such as the expert report of 14-18 September 2000,
did not reflect the truth about his physical condition at that time
and that subsequent medical examination did not indicate the causes
of his otitis. The applicant refers to the witness statements by R.
and Z. and to his advocate's letter of 14 September 2000 (see above)
which corroborate his version of events and on which the Government
failed to comment. It is submitted that his version of events is supported
by the fact that he has described in minute detail the ill-treatment
he was subjected to, the layout of rooms, doors, furniture and objects
in the Uchaly police station, and the movements, ranks and names of
the police officers concerned. Finally, he notes that he had consistently
denied his involvement in the murder (during the interrogations on 3
August and 5 September and the meetings with his advocate on 6 and 7
September) and that it is hard to imagine that he would have suddenly
decided to confess on 9 September when his counsel was absent.

As regards the procedural requirement of Article
3, the applicant claims that the investigation carried out in the alleged
ill-treatment was manifestly inadequate and ineffective. No confrontation
between the police officer and him was carried out. In fact, he was
not himself questioned about the alleged ill-treatment. No specific
questions were put to the police officers. As to the medical report
of 18 September 2000, the applicant disagrees with its conclusions and
sees as the only possible explanation of it, the doctor's bias or pressure
from the police officers not to record the actual injuries. The prosecutor
did not take any steps to establish the truth: thus, he did not interrogate
possible witnesses about the applicant's state of health at the material
time. In any event, the investigation was not impartial because Alibakov,
who was responsible for the investigation of the murder, was aware of
the beatings, and was an official from the prosecutor's office.

B. The Court's assessment

The Court recalls that Article 3 requires the
authorities to investigate allegations of ill-treatment when they are
“arguable” and “raise a reasonable suspicion” (Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VIII, p. 3290, § 101-2). It considers therefore
that the Government's objection as to the non-exhaustion of domestic
remedies is closely linked to the merits of the applicant's complaint
about the domestic authorities' failure to comply with its procedural
obligations under Article 3 of the Convention. Thus, the Court finds
it necessary to join the Government's objection to the merits of the
case.

The Court considers, in the light of the parties'
submissions, that the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an examination
of the merits. The Court concludes therefore that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has been
established.

2. The applicant complained under Article 5 of
the Convention that his detention in September 2000 had been unlawful.
The relevant parts of that Article provide as follows:

“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so.

...”

The Court notes that the applicant's detention
was authorised by an order of 8 September 2000. The applicant countersigned
the order below the printed statement indicating that the procedure
for lodging an appeal to a court had been explained to him. He did not
lodge such an appeal at that time or in the subsequent period when he
could benefit from legal assistance of his lawyer.

It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic
remedies.

3. The applicant complains under Article 6 §§
1, 2 and 3 (c) the Convention that he was convicted on the basis of
his “confession statement” given under duress and in the absence
of a legal counsel and that the courts did not elucidate all the relevant
facts. The relevant parts of Article 6 read as follows:

Article 6

“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...

2. Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has
the following minimum rights:

...

(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the interests of
justice so require...”

A. The parties' submissions

The Government submit that the “confession
statement” (явка с повинной) had been hand-written by the
applicant on 9 September 2000. Under the Russian rules on criminal procedure,
it was not a procedural document that should, or could, have been compiled
in the presence of a lawyer. In contrast to the official record of an
interrogation, a “confession statement” is a manifestation of the
defendant's good will. The statement contains the applicant's hand-written
and countersigned admission that he was advised about his right not
to incriminate himself, guaranteed by Article 51 of the Russian Constitution.
Referring to their submissions under Article 3 above, the Government
claim that the “confession statement” was not given as a consequence
of ill-treatment by police officers. In any event, they consider that
the complaint is inadmissible because the applicant failed to exhaust
domestic remedies in that he did not lodge an appeal against the decision
of 24 September 2000.

The applicant refers to the Convention organs'
case-law, according to which the admission in court of evidence that
is obtained by “maltreatment with the aim of extracting a confession”
is a breach of the right to a fair hearing (Austria v. Italy, no. 788/60, Commission's report, Yearbook
VI, p. 116). It was also found that during the investigation of a case,
a confession by an accused must be given in the presence of his lawyer
or, in the absence of that, satisfactory procedures be available at
the trial to check that it has not been given under duress (G. v. the United Kingdom, no. 9370/81, Commission decision of
13 October 1983, Decisions and Reports 35, p. 75). The applicant takes
note of the Government's admission that his confession was given in
the absence of a lawyer. He draws the Court's attention to the fact
that his advocate was denied access to him on 8 September 2000, the very
day of the alleged ill-treatment. At the same time, the Government did
not refer to any law provision prohibiting an advocate's presence in
the time of signing of a “confession statement”. Nor did the Government
specify any good cause for restriction on his right to benefit from
the assistance of a lawyer at the initial stage of the investigation
(John Murray
v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, § 63). On the other hand, the applicant submits
that no satisfactory procedures were available at the trial to check
that his “confession” had not been given under duress. The trial
and appeal courts grounded their findings on the medical report of 14-18 September
2000 and the prosecutor's decision of 24 September 2000, but they had
no evidence of his involvement in the crime other than his “confession”.

B. The Court's assessment

As the requirements of Article 6 §§ 2 and 3
are to be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1, the Court will examine the complaints under those
provisions taken together. It notes that the crucial issue for the assessment
of the fairness of the applicant's trial is whether or not his confession
had been obtained under duress. This issue is closely linked to the
complaint under Article 3 of the Convention and the Court also finds
it necessary to join the Government's objection of non-exhaustion to
the merits of the case.

The Court considers, in the light of the parties'
submissions, that the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an examination
of the merits. The Court concludes therefore that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has been
established.

4. The applicant complained under Article 7 of
the Convention that he was convicted in breach of that provision which
reads as follows:

“1. No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when
it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was committed...”

The Court reiterates that it is not its task
to rule on the applicant's individual criminal responsibility or the
facts disputed by the applicant, those being primarily matters for the
assessment of the domestic courts. From the standpoint of Article 7
§ 1 of the Convention, it must consider whether the applicant's acts,
at the time when they were committed, constituted offences defined with
sufficient accessibility and foreseeability by domestic law (see Streletz, Kessler
and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98,
§ 51, ECHR 2001-II). In this connection, the Court observes that the
Criminal Code of the Russian Federation provided for criminal liability
for intentional manslaughter, both at the time of the acts imputed to
the applicant and at the time of the trial. The offence of murder carried
up to fifteen years' imprisonment. These provisions were publicly accessible
and their application should have been sufficiently clear and foreseeable
to the applicant. The trial court sentenced the applicant to nine years'
imprisonment and the appeal court upheld that sentence. Thus, the sentence
did not exceed the maximum penalty provided for in the Criminal Code
for the act of which the applicant was found guilty. It appears therefore
that the conviction satisfied the requirements of paragraph 1 of that
Convention provision.

It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.

5. Lastly, upon receipt of the applicant's brother's
letters of 18 and 21 January 2004, the Court, of its own motion, raised
the issue whether the events of 6 January 2004 amounted to a hindrance
to the effective exercise of the applicant's right of individual petition.
Article 34 reads as follows:

“The Court may receive applications from any
person, non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting Parties
of the rights set forth in the Convention or the Protocols thereto.
The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right.”

The Government have conceded that a conversation
between Captain Galin and the applicant took place on 6 January 2004.
They claim, however, that the applicant was not subjected to any mental
or physical pressure. In support of their statements, they submitted
an “explanation” written by the applicant by hand and dated 3 March
2004, in which he indicated that he had not been subjected to “mental
or physical pressure by employees of the Prisons' Directorate of the
Bashkortostan Republic”.

The applicant has not made any further comments.

The Court recalls that it is of the utmost importance
for the effective operation of the system of individual petition guaranteed
under Article 34 of the Convention that applicants or potential applicants
should be able to communicate freely with the Convention organs without
being subjected to any form of pressure from the authorities to withdraw
or modify their complaints (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports
1996-IV, § 105; Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 105; Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, § 159). In this context, “pressure” includes
not only direct coercion and flagrant acts of intimidation but also
other improper indirect acts or contacts designed to dissuade or discourage
applicants from pursuing a Convention remedy. Having regard to these
criteria, the Court considers that the allegation of hindrance raises
serious issues of fact and law under the Convention, the determination
of which requires its further examination.

For these reasons, the Court unanimously

Decides to join to the merits the Government's objection as
to the exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicant's
complaints about the alleged ill-treatment by the police and the unfairness
of the trial;

Decides to pursue the examination of the allegation of the
respondent Government's failure to comply with its obligations under
Article 34 of the Convention;